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DECREE No

DECREE No.43-CP OF JULY 16, 1996 OF THE GOVERNMENT PROMULGATING THE REGULATION ON BIDDING

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

At the proposals of the Minister of Planning and Investment, the Minister of Construction and the Minister of Trade,

DECREES:

Article 1.- To promulgate together with this Decree the Regulation on Bidding.

Article 2.- This Decree takes effect from the date of its signing. The earlier stipulations which are contrary to this Decree are now annulled.

Article 3.- The Ministers, the Heads of the ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People�s Committees of the provinces and cities directly under the Central Government and the project owners shall have to implement this Decree.

The Ministry of Planning and Investment shall preside over the coordination with the Ministry of Construction, the Ministry of Trade and the other concerned Ministries and branches in directing and inspecting the implementation of the Regulation on Bidding promulgated together with this Decree.

On behalf of the Government

The Prime Minister

VO VAN KIET

REGULATION ON BIDDING

(promulgated together with Decree No.43-CP of July 16, 1996 of the Government)

The Regulation on Bidding is promulgated with a view to achieving the uniform management of bidding activities throughout the country, ensuring the rightness, objectivity, fairness and competitiveness in bidding for investment projects or parts of investment projects regarding the selection of consultants, procurement of materials and equipment or construction and installation so as to carry out investment projects on the territory of the Socialist Republic of Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1.- Interpretation of terms

The terms used in this Regulation are construed as follows:

1. "Bidding" is a process of selecting bidders who meet the requirements of the tenderer on the basis of the competition among bidders.

2. "Evaluation of bids" is a process of analyzing and evaluating the bids so as to select winning bidders.

3. "Tenderer" is a project owner or the lawful representative of the project owner who has an investment project offered for bidding.

4. "Agency competent to decide the investment" is:

- The Managing Council or Managing Board, if the investment capital is owned by a company or cooperative; or

- A State organization or agency which is competent or authorized as such, as prescribed by law, if the investment capital is State capital.

5. "Bidder" is an eligible economic organization which has the legal person status for participating in a bid. A bidder may be an individual if bid is for the selection of consultant(s).

6. "Bidding package" is part of the investment project, determined according to the characteristics or order of execution of the project. It must have a reasonable size and must ensure the uniformity of the project in the selection of the bidder. A bidding package may also be the whole project.

7. "Investment and Construction consultancy" is the activities to meet the tenderer�s requirements on professional knowledge and experiences needed for its consideration, decision and examination of the preparation process and execution of the investment.

8. "Construction and installation" are the work related to the process of construction and installation of equipments at the project or parts of the project...

9. "Materials and equipment" are the complete or incomplete sets of equipment, finished products or semi-finished products, raw materials and materials.

10. "Prequalification" is the preliminary selection of the eligible and capable bidders to participate in the bid.

11. "Bid submission" is the time-limit for receiving bid dossiers as prescribed in the tenderer�s invitaion.

12. "Bid opening" is the moment of the opening of bid dossiers, as prescribed in the tenderer�s invitation.

13. "Shortlist" is the limited list of bidders selected through the evaluation of bids.

Article 2.- Scope and objects of the Regulation on Bidding.

The Regulation on Bidding shall be applied to select bidders for investment projects and the bidding must be organized in Vietnam, including:

a/ Investment projects ratified by the agency competent to decide the investment in accordance with the Regulation on the Management of Investment and Construction.

b/ Joint venture investment projects (or business cooperation projects) between foreign parties and Vietnamese State enterprises whose capital contributions must account for at least 30% of the prescribed capital of such projects.

c/ Investment projects calling for joint venture partners with 100% of investment capital owned by the foreign partner or in BOT (Building-Operation-Transfer), or BT (Building-Transfer) forms.

d/ Other investment projects for which the project owners decide to organize the bidding.

e/ With regard to projects using capital from aid sources provided by international or foreign organizations, the agency authorized to negotiate and sign agreements, must submit, before the signing, the provisions which are contrary to this Regulation to the Prime Minister for consideration and decision.

Article 3.- Forms of selecting bidders and applicable modes.

1. Forms of selecting bidders:

a/ Unrestricted bidding.

Unrestricted bidding is a bidding in which the number of participating bidders is not limited. The tenderer must announce publicly the bidding on the mass media and clearly describe the conditions as well as deadline for the bid submission. For big bidding packages involving technological and technical complexities, the tenderer must conduct a prequalification to choose the eligible and capable bidders.

b/ Restricted bidding.

Restricted bidding is a bidding in which the tenderer shall invite only a number of bidders who are capable of meeting the terms of the tenderer�s.

c/ Appointed bidding.

Appointed bidding is a special form which shall be applied in accordance with the Regulation on the Management of Investment and Construction to bidding packages in which State capital is used and the appointment of bidders is allowed. The tenderer shall negotiate the contract only with a bidder appointed by the agency competent to decide the investment. Only when such negotiation fails can negotiation with another bidder be conducted.

2. Applicable modes:

a/ One-dossier bag bidding (one envelope).

Under this mode, the bidder shall have to submit one dossier bag that contains technical and financial solutions, the bidding price and other conditions.

b/ Two-dossier bag bidding (two envelopes).

Under this mode, the bidder shall have to simultanously submit two separate dossier bags which contain technical solutions and financial offers respectively. The dossier with technical solutions shall be considered first for evaluation and classification. The bidder who ranks first for technical solutions shall have his/her second dossier bag with financial offers considered. In case such bidder fails to meet the financial requirements and terms of the contract, the tenderer shall have to ask the agency competent to decide the investment for permission to invite the next bidder for consideration.

c/ Two-phase bidding.

This mode is applied to big projects involving technological and technical complexities or B.T. (Building and Transfer) projects. In the course of consideration, the project owner shall complete his/her technological, technical and financial requirements in the tenderer�s invitation.

First phase: The bidders submit their preliminary technical and financial solutions (without bidding prices) so that the tenderer may consider and discuss in details with each of the bidders to reach an agreement on the technical conditions and criteria, enabling them to prepare and submit their official technical solutions.

Second phase: The tenderer asks the bidders participating in the first phase to hand over their complete technical solutions on the same technical floor and complete their proposals on the financial terms, the tempo of construction, the terms of the contract and bidding prices for evaluation and classification.

d/ Offer for competition.

This mode is applied only to bidding packages for procurement of simple and small-scale materials and equipment. Each bidding package must have at least three price offers from three different bidders on the basis of the requirements of the tenderer. The bidder who meets the requirements and offers the lowest bidding price shall be considered for the award of the contract.

e/ Direct procurement.

This mode is applicable, with permission from the agency competent to decide the investment, to those materials and equipment urgently needed for the completion of the project, which were earlier offered for bidding and their purchase is already permitted by the agency competent to decide the investment.

f/ Direct bidding assignment.

This is a mode whereby a highly reliable bidder shall be directly chosen for consideration and negotiation about the contract. This mode is applied only to small-scale bidding packages of under 500 million VND and bidding packages with the bidders appointed and approved by the Prime Minister. In case the appointed bidder fails to meet the requirements of the tenderer, the project owner shall be entitled to propose replacement to negotiate the contract with the agency competent to decide the investment for consideration.

g/ Self-performance.

This mode is applicable only to projects allowed by Regulation on the Management of Investment and Construction.

Article 4.- Forms of contract and modes of their performance.

The signing of a contract between the tenderer and the winning bidder is compulsory. Such contract must be made on the following principles:

a/ It fully reflects the commitments of the tenderer and the winning bidder.

b/ The bidding price written in the contract is the price ratified by the agency competent to decide the investment and must not be changed in the process of the implementation of the contract.

c/ The legal provisions on contracts of the Socialist Republic of Vietnam must be strictly observed.

Depending on the characteristics of the bidding package, the form of the contract to be signed may be:

- A consultancy contract,

- A contract for the procurement of materials and equipment,

- A contract for construction and installation; or

- A project contract.

The mode of contract implementation shall be selected according to the time-limit and price conditions written in the contract, which may be either:

- A package contract (with package price);

- A turn-key contract; or

- A contract with re-adjustment of price.

1. Package contract: The package contract is a contract carried out with package price, applicable to bidding packages which are clearly defined in terms of quantity, quality and time-limit... The winning bidding price shall be the price for the payment of the contract.

2. Turn-key contract: is applicable only to projects approved by the agency competent to decide the investment to offer bidding for the whole project (designing, procurement of materials and equipment or construction and installation...). The project owner shall examine and take over the project when the contractor has fulfilled the contract in accordance with the contents and value written in the contract.

3. Contract with re-adjustment of price: is applicable to complicated contracts for which the quantity and volume cannot be determined exactly at the time of their signing or which have suffered from a big fluctuation of prices and have been executed for at least 12 months.

Written in a contract with re-adjustment of price must be lists of the adjusted prices, the conditions, formula and limit of price adjustment, ratified in writing by the agency competent to decide the investment, certifying causes of the price fluctuation (such as labor, raw materials and materials, equipment...).

Article 5.- Plan for project bidding.

A plan for project bidding drafted by the tenderer must be ratified by the agency competent to decide the investment. In the absence of the conditions for drafting a plan on the bidding for the whole project, the tenderer may elaborate a plan for bidding for the project part by part according to investment phases.

The content of a plan for project bidding shall include:

1. Division of the project into various bidding packages.

2. Estimated price of each bidding package.

3. Form of bidder selection and applicable mode.

4. Time-table to organize bidding for each bidding package.

5. Mode of the contract performance.

6. Duration of the performance of the contract.

Article 6.- Conditions for tendering and bid participation.

1. Conditions for tendering:

The tenderer must prepare the following documents:

- The decision on the investment or investment license issued by the competent agency. In case of a bid for consultancy on feasibility, there must be a written approval from the agency competent to decide the investment.

- The ratified bidding plan.

- The tendering dossier (in case of a prequalification, a dossier for prequalification is required).

2. Conditions for bid participation:

A bidding participant must meet the following conditions:

- Having a business permit or an operation license.

- Technically and financially capable of meeting the requirements defined in the tendering dossier.

- Having a regular bid and entitled to only one application for one bidding package, either as an individual or co-bidder.

Article 7.- Conditions for international bidding and privileges to domestic bidders.

1. The project owner shall be entitled to participate in international bidding only in the following cases:

a/ Bidding packages with no or only one domestic bidder capable of meeting the conditions of the project.

b/ The projects using capital from aid sources provided by international or foreign organizations, which must be opened for international biddings as stated in the agreement.

2. A domestic bidder (individual or co-bidder) participating in an international bidding shall be considered for pre-emptive right when his/her bid is estimated to be equivalent to bidding conditions offered by foreign bidders.

3. Domestic bidders who have participated in and won international biddings shall be entitled to privileges in accordance with particular provisions of the State.

4. A foreign bidder participating in an international bidding organized in Vietnam must join a Vietnamese bidder or to use sub-contractors in the construction and installation or in the procurement of suitable materials and equipment which can be produced or processed in Vietnam.

Article 8.- Clarification and amendment of the bidding documents.

The bidders are not allowed to change their bids after the deadline for bid submission. In the process of evaluating and comparing the bids, the tenderer may ask the bidder to clarify several issues, but not change the basic contents of the bid and bidding prices. All clarification requests by the tenderer and the replies by the bidder must be made in writing. Any explanation by the bidder that leads to a change of the proposed bidding prices shall not be considered. The tenderer shall keep all papers requesting the clarification and relevant explanations.

Article 9.- Deadline for bid submission and period of validity of bids.

The tenderer must clearly state the deadline for bid submission and period of validity of bids in the tendering dossier. A deadline for bid submission must be set, depending on the size and the complexity of the bidding package, but must not exceed 60 days for a consultancy bid or a materials and equipment procurement, and 90 days for a construction and installation bid, counting from the date of issuance of the tendering dossier. In specific cases where the tenderer needs to amend the tendering dossier and the bid submission is still valid, the deadline for bid submission may be extended. The proposed amendments must be made in writing and sent in writing by the tenderer to the participating bidders at least 10 days before the deadline for bid submission so that the bidders may complete their bids.

The period of validity of bids is counted from the bid submission deadline to the date when the winning bidder is announced. In case of an extension of the period of validity of bids, the tenderer must notify the bidders thereof. If the bidders refuse to accept the extension, the bid securities shall be returned to them.

Article10.- Bid opening, classification, selection and announcement of bidding result.

1. Bid opening: The bids submitted on time shall be accepted and monitored by the tenderer in accordance with the regulations on the keeping of confidential documents. The bid opening shall be conducted publicly in accordance with the date, time and place stated in the tendering dossier. The bid opening must be witnessed and certified by the representatives of the local State administrative agencies (province or city directly under the Central Government). The representatives of the tenderer and of the participating bidders (if any) must affix their signatures on the bid opening report.

The bid opening report must include the name of the bidding package, the date, time and place of the bid opening, the names and addresses of the bidders, the bidding prices (except bids for consultancy selection), bid securities (if any), the amended or supplemented documents and other details.

Any application for bid which varies with the terms announced by the tendering dossier shall be excluded.

2. Classification of the bidders: The regular bids shall be considered, evaluated in details and compared for classification by the tenderer on the basis of the tendering dossier and the evaluation criteria approved by the agency competent to decide the investment before the bid opening.

3. Selection of bidders and annoucement of the bid result:

The bidding result must be submitted to the agency competent to decide the investment for ratification.

The tenderer shall announce the bid result only when the winning bidder is approved in writing.

Article 11.- Bid currency and language used in bidding documents.

Bid currency is the currency prescribed by the tenderer in the tendering dossier. The applicable exchange rates for Vietnam Dong and foreign currencies shall be the rates announced by the Vietnam State Bank at the time of the bid opening.

The language used in bidding documents shall be Vietnamese (for domestic biddings), and Vietnamese or English (for international biddings).

Article 12.- Confidentiality of dossiers, documents and information.

All agencies, organizations and individuals involving in a bid have the responsibility to preserve the secrecy of the dossiers, documents and information in accordance with the following regulations:

- Not disclosing the contents of the tendering dossier to anyone before the date of its issuance by the project owner.

- Not bringing home or lending to other persons the bid dossiers, notebooks, records of meetings for bid consideration, opinions and comments of the specialists or consultants on each bidder and other related documents sealed or marked with "secret" or "top secret" stamps.

- Not disclosing the result of the bidder evaluation and classification to anyone before the project owner signs an official contract with the winning bidder.

In case of any sign of disclosure of secrets, immediate measures shall be taken in accordance with the stipulations in Article 45 of this Regulation.

Chapter II

BIDDING FOR CONSULTANCY

Article 13.- Contents of the investment and construction consultancy.

Investment and construction consultancy involves the following tasks:

- Investment preparation.

- Investment execution.

- Other consultancy services.

a/ Investment preparation consultancy:

- Making the feasibility study report.

- Evaluating the feasibility study report.

Consultants are not allowed to evaluate the feasibility study report made by themselves.

b/ Investment execution consultancy:

- Designing, making the total estimate and estimates.

- Evaluating the design and the total estimate.

- Establishing the tendering dossier.

- Analyzing and evaluating bids.

- Supervising the construction and installation of equipment.

Consultants are not allowed to evaluate the design, the total estimate and estimates made by themselves.

c/ Other consultancy services:

- Operation in the initial stage.

- Execution of training programs, programs on technology transfer and project management.

Article 14.- Capability and responsibility of the investment and construction consultants.

- An investment and construction consultant must have a certificate of his/her professional qualifications as required by the project.

- An investment and construction consultant shall take responsibility before the project owner and law for the correctness, accuracy and objectivity of his/her professional work and the completion of the work in accordance with provisions of the contract.

Article 15.- Forms of investment and construction consultancy.

The investment and construction consultancy may be conducted in the following forms:

- Hiring consultancy organizations with legal person status (governmental or non-governmental companies, firms, units or complexes...) which operate in accordance with law.

- Hiring directly a consultant (such a consultant may operate independently or for an organization with legal person status).

Article 16.- Procedures for bidding to select investment and construction consultants.

The tenderering party shall conduct a bidding for the selection of investment and construction consultants according to the following proceedings:

1. Appointing a group of specialists to assist the bidding.

2. Elaborating a plan for consultant selection: Clearly defining the purposes, contents, scope of the work and execution plan, duties and responsibilites of the consultants. The above contents must be stated in the "Terms of reference" of the contract. The "Terms of reference" shall also define the responsibilities of the tenderer.

3. Announcement of the bidding

4. Invitation for consultancy biddings: A tendering dossier for consultancy shall be sent to the selected bidders and include the following:

- The tender.

- "Terms of reference".

- Basic information related to the project.

- Main criteria for evaluation.

- Attached detailed appendice.

5. Acceptance and monitoring of the bids

6. Bid opening

7. Bid evaluation: The evaluation of bids shall be conducted in accordance with the criteria provided for in the tendering dossier. Where the mode of the two-dossier bag bidding is applied, the tenderer shall first open the dossier with technical solutions for consideration, evaluation and classification to be submitted to the competent agency which shall decide whether to include such a bidder in the list of bidders obtaining 65% of the total of points. The bidder ranking first for his/her technical solutions shall have his/her envelope with financial solutions opened for consideration by the tenderer and shall be invited to negotiate the contract.

In case the negotitation with the first ranking bidder in terms of technical solutions fails, the tenderer shall ask permission from the agency competent to decide the investment to conduct negotitation with the next bidder.

Announcement of the winning bidder and signing of the contract: Basing himself on the ratified bidding results, the project owner shall inform the bidders who have participated in the bid, including the winning bidder, of the bidding results and at the same time sign an official contract with the consultant of the winning bidder.

Article 17.- Consultancy cost.

1. The cost of foreign consultancy includes:

Cost of hiring consultancy experts (basic wages, social fees, management fees, corporation interests and other allowances for experts)

Cost outside salary (air fares, travel allowances, fees on stationery, information, working and training facilities...)

Reserve fees.

The reserve fees shall be used only when there is approval by the agency competent to decide the investment and shall not exceed 10% of the value of the contract.

2. With regard to the cost of domestic consultancy, the current State regulations shall apply.

Article 18.- Appendix I

The bidding notice and tendering dossier shall be made in accordance with the guidances in Appendix I attached to this Regulation(1).

Chapter III

BIDDING FOR THE PROCUREMENT OF MATERIALS AND EQUIPMENT

Article 19.- Procedures for bidding organization.

1. Appointing a group of specialists to assist the bidding.

2. Preparation of the tendering dossier.

- Announcement of the bidding.

- Instructions to bidders.

- Requirements on technology, materials, equipment and their technical properties.

- Price index.

- General conditions and specific conditions of the contract.

- Bid security.

- Agreed form of the contract.

- Performance guarantee.

With regard to prequalification bid dossiers (applicable to equipment of complicated technologies), only the main conditions are required so that the eligible bidders may be quickly selected, who can continue participating in the bidding (as applicable to prequalification of bidders for construction and installation)

3. Bid announcement:

The bid shall be notified to the bidders in a way to be chosen by the tenderer and suited to the bidding form. The supply of the tendering dossier to the bidders (sold or supplied free of charge) shall be stipulated by the tenderer.

4. Bid submission: The bidders shall submit their bids at the place and time prescribed in the tendering dossier.

5. Bid opening, classification of bidders, selection and announcement of the winning bidders.

The tenderer shall organize the bid opening, classify the bidders, select and announce the winning bidders in accordance with the procedures stipulated in Articles 10 and 22 of this Regulation.

Article 20.- Instructions to bidders.

The tenderer shall have to explain its requirements and the procedures to be observed by the bidders, which include the following main contents:

- A brief description of the project.

- Capital sources for the execution of the project.

- Capability, experiences and legal status of the bidders; evidences and information related to the bidders in a 5-10 year period prior to the bidding.

- Arrangement for the bidders to visit the site (if any) and answering their questions.

Article 21.- Bid security (deposit for the bid).

The bidder must pay a bid guarantee together with the bid dossier. The bid security shall be equivalent to 1%-3% of the total estimated value of the bidding price. In a number of cases, the tenderer may set a unique bid security for all bidders in order to preserve the secrecy of the bidding prices.The tenderer shall stipulate form, conditions and a bank for the bidders to deposit their bid securities. The securities shall be returned to the losing bidders within 30 days after the announcement of the bidding result. The bidders shall not have their bid securities returned in the following cases:

- They refuse to execute the contract after having won the bidding.

- They withdraw the bids after the deadline for bid submission.

- They seriously violate the Regulation on Bidding.

After the payment of the performance security, the winning bidder shall have the bid security returned.

Article 22.- Evaluation, classification of the winning bidders and submission for ratification of the bidding result.

1. Analysis, evaluation and comparison of bids.

The tenderer shall examine the regularity of the bids in accordance with the regulations.

Summing up the data of the bid dossier: The tenderer shall examine and summarize main data to be included in a general evaluation report before considering and evaluating the bids.

Evaluation of the bids: The regular bids shall be considered, evaluated in details and compared with each other by the tenderer on the basis of the following criteria:

a/ Capability and experiences of the bidder:

Technical capability (main commercial products, the personnel and their professional qualifications...)

Financial and business capability (turnover and profit...)

Experiences in the execution of contracts of similar type in Vietnam and other countries in the region.

b/ Technical criteria:

The bidder must be capable of meeting the requirements on technology, quality of materials and equipment and their technical properties stated in the tendering dossier.

- Economic and technical features, trade marks of the offered materials and equipment, names of the manufacturing firm and country.

- The rationality and economic efficiency of the technical solutions and measures for the materials and equipment supplied.

- Capability for equipment installation and qualifications of the technicians.

- Geographical adaptability.

- Evaluation of the environmental impacts and solutions thereof.

c/ Financial capability and offered prices: The financial capability and the financial supply capability and conditions (if so required) and the bidding price of each bidder shall be considered.

d/ Ensuring of the time-limit for the contract performance as stated in the tendering dossier.

e/ Technology transfer.

f/ Training.

g/ Other necessary criteria.

The above criteria shall be considered only for the principal bidders in the group, the capabilities of the secondary bidders not withstanding.

2. Evaluation of bids.

The bids shall be considered, evaluated and classified in accordance with the criteria ratified by the agency competent to decide the investment before the bid opening.

In cases where all the applications for the bid are not eligible, the tenderer shall propose to the agency competent to decide the investment to reorganize the bidding or request all the bidders to offer other bidding prices or change other conditions if necessary.

3. Announcement of the winner and the signing of the contract

The tenderer shall announce the bidding results and negotiate to sign an official contract with the winning bidder only after a written approval thereof is issued by the agency competent to decide the investment.

Article 23.- Performance security (deposit for the contract performance).

Performance security is the bidder�s commitment to perform the contract. Depending on the form and size of the contract, the performance security money may represent 10%-15% of the contract�s total value. In specific cases, the requested performance security may exceed 15% but it must be approved by the agency competent to decide the investment. The performance security shall be effective until the end of the guaranty period of the contract. The detailed content of the performance security document shall be as follows:

- The time-limit for performance security payment shall not exceed 30 days from the date on which the bidder receives the notice on his/her bid winning.

- Conditions for the performance security.

- Period of validity of the performance security.

- Currency for the performance security.

Article 24.- Appendix II.

A tendering dossier for the procurement of materials and equipment shall be made in accordance with the instructions in Appendix II attached to this Regulation(1).

Chapter IV

BIDDING FOR CONSTRUCTION AND INSTALLATION

Article 25.- Procedures for organization of bidding.

1. Appointing a group of specialists to assist the bid.

2. Prequalification of the bidders (if any).

3. Preparation of the tendering dossier.

4. Sending invitation for bids or making an announcement on the bidding.

5. Acceptance and management of the bids.

6. Bid opening.

7. Evaluation and classification of the bidders.

8. Submission of the bidding results for ratification.

9. Announcing the bidding results and signing the contract.

Article 26.- Prequalification of bidders:

The prequalification is applicable only to big contracts for the selection of bidders who have enough capabilities and experiences to carry out the projects.

The prequalification shall be conducted according to following order:

a/ Preparation of prequalification dossier:

- Announcement of the prequalification.

- Instructions for the prequalification.

- Criteria for the evaluation of the prequalification.

- Attached appendice.

b/ Announcement of invitation for the prequalification and acceptance of the bids for prequalification.

c/ Evaluation of the bids for prequalification.

d/ Announcement of the prequalification result.

Article 27.- Tendering dossier.

A tendering dossier includes:

- A letter of invitation for bidding (in case of a prequalification), or announcement of invitation for the bidding (in case of no prequalification).

- Bidding form.

- Instructions to bidders.

- A dossier of technical designs with a prognostic and technical instructions thereof.

- Bidding tempo.

- General and specific conditions of the contract.

- Bid security.

- Agreed form of contract.

- Performance security.

Article 28.- Announcement of tender.

An announcement of tender includes:

- Name and address of the tenderer.

- Brief description of the project, place and time for contruction...

- Instructions for the tendering dossier.

- Conditions for the bidders.

- Deadline and place for bid submission.

The tenderer shall choose the suitable form to inform the bidders of the bidding in the appropriate form already adopted.

Article 29.- Instructions to bidders.

The main contents shall include:

- Brief discription of the project and the scope of the bidding.

- The applicable technical norms.

- Capital sources for the execution of the project.

- Conditions for the bidders participating in the bidding (legal person status, experiences, technical and financial capabilities...)

- Arrangement of a visit to the site and answering the bidders� queries.

Article 30.- Bidding dossier.

A bidding dossier for contruction and installation contains:

- Application for the bidding.

- A copy of the business license and professional certificate.

- Documents showing the bidder�s capability.

- Measures for overall construction and measures for construction of specific parts of the project.

- Organization of the construction and progress of the contract performance.

- Bidding price estimate.

- Bid security.

Article 31.- Bid security (deposit for the bid).

The bid security for construction and installation shall be the same as for bidding for the procurement of materials and equipment in Article 21 of this Regulation.

Article 32.- Performance security (deposit for the contract performance).

The performance security for construction and installation shall be the same as for the bidding for the procurement of materials and equipment in Article 23 of this Regulation.

Article 33.- Evaluation and classification of bidders.

The evaluation and classification of bidders shall be conducted in the following steps:

1. Consideration of the bids:

- Examination of the bids� regularity.

- Requesting bidders to clarify the ambiguous points in their bids as well as the unreasonable unit prices applied to big quantities. All requests and replies must be made in writing.

- In case of any arithmetic mistake, the tenderer shall have to correct it and promptly inform the bidder thereof. If the bidder does not accept it, he/she shall be excluded from the bidding.

- Every update information on any bidder, which is contrary to the bid, shall be considered and examined.

2. Conversion of the bidding prices and technical norms on one price floor for evaluation and comparision.

3. Evaluation and comparision of bids: The bids shall be evaluated and compared by each set criterion then summed up for an overall evaluation.

Main contents to be considered when the criterion-by-criterion evaluation is made:

a/ Technical and quality criteria:

- The bidder�s capability to meet the requirements on techniques and quality of the materials and equipment described in the design dossier.

- The rationality and feasibility of the technical solutions and measures for the organization of construction.

- Guarantee of the environmental hygiene and other safety conditions like fire prevention and labor safety...

- The adaptability of the construction equipment (quantity, type, quality and availability for use...)

b/ Criteria on the bidder�s experiences:

- Experiences in executing projects with similar technical, geographical and construction conditions.

- The number and qualifications of cadres and technicians, who shall directly involve in the execution of the project.

c/ Financial and price criteria:

- The bidder�s financial capability to meet the requirements of the project.

- The suitability of the bidding price with the approved total estimate or the estimates.

d/ Criteria on the progress of construction:

- The ability to ensure the overall construction tempo as stated in the tendering dossier.

- The rationality of the tempo of completion of related parts of the project.

The above-said criteria shall be considered in accordance with the evaluation criteria approved by the agency competent to decide the investment before the bid opening.

Article 34.- Ratification of the bidding results.

Based on the result of the evaluation of the bids, the tenderer shall classify the bidders in accordance with the approved evaluation criteria. The result of the evaluation and classification of the bidders must be ratified by the agency competent to decide the investment.

In cases where all the bids fail to meet the set conditions, the tenderer shall propose the reorganization of the bidding to the agency competent to decide the investment. If the bids fail to meet the financial and price conditions, the tenderer shall propose to the agency competent to decide the investment to allow the bidders to offer new bidding prices or to reorganize the bidding.

Article 35.- Appendix III.

Prequalification bids and tendering dossier for construction and installation shall be made in accordance with the instructions in Appendix III attached to this Regulation(1).

Chapter V

BIDDING FOR PROJECT

Article 36.- Subjects of a project bidding.

- Projects which needn�t be divided into bidding packages.

- Projects which shall be carried out by the Building and Transferring (BT) mode.

- Projects which shall be carried out in the Building, Operating and Transferring (BOT).

Article 37.- Procedures for organizing a project bidding.

Procedures for organizing a project bidding shall follow stipulations in Article 25.

Article 38.- Tendering dossier and criteria for evaluation of bids.

A tendering dossier and the criteria for evaluation of bids must include the full contents of the bid for consultancy, or the bid for the procurement of materials and equipment , or the bid for construction and installation, or the bid for operation and transfer (if any).

Article 39.- Instructions for a project bidding.

A project bidding shall be conducted in accordance with the instructions provided for in a particular document, the compilation of which is presided over by the Ministry of Planning and Investment and submitted to the Prime Minister for promulgation.

Chapter VI

BIDDING MANAGEMENT

Article 40.- Responsibilities and powers of the tenderer.

The tenderer shall take responsibilities for the bidding organization in accordance with the ratified bidding plan:

1. Appointing a group of specialists or hiring consultants to perform the following tasks:

- Preparing legal documents and drafting tendering dossier.

- Accepting and monitoring the bids.

- Analyzing, evaluating, comparing and classifying the bids in accordance with the professional criteria and conditions set in the tendering dossier.

- Summing up the bids, preparing a report on the bidding results to be submitted to the project owner for consideration.

2. Submitting the bidding results to the agency competent to decide the investment for approval of the winning bidder.

3. Announcing the bidding results already approved.

4. Negotiating the contract with the winning bidder for the official signing.

Article 41.- Responsibilities and powers of the consulting organizations or individual consultants participating in the bidding and the bid evaluation.

- A group of specialists or consulting organization participating in a bidding shall have to perform the tasks stipulated at Point 1, Article 40 and have the right to express in writing their opinions honestly and objectively to the project owner in the process of analyzing, evaluating and classifying the bids.

- Experts invited by the agency competent to decide the investment to give consultancy on the selection of eligible bidders must make their written comments and take personal responsibility before law for the accuracy, honesty and objectivity of such comments.

Article 42.- Responsibilities and powers of the agency competent to decide the investment.

1. To ratify the tendering dossier, criteria for the evaluation of bids and the list of bidders invited to the bidding (shortlist).

2. To ratify the results of the selection of bidders.

3. To inspect and direct the tenderer in the strict observance of the Regulation on Bidding.

4. To inspect and direct the tenderer in signing the contract and organizing the performance of the contract with the winning bidder.

With regard to investment projects using State capital in group A (as provided for in the Regulation on the Management of Investment and Construction), the Prime Minister shall assign the Ministers, the Presidents of the People�s Committees of the provinces and cities directly under the Central Government, and the heads of competent agencies to apply provisions at Points 1, 3 and 4 of this Article.

Article 43.- Ratification and authorized ratification of the bidding results.

1. The Prime Minister shall ratify bidding plans for projects using State capital, which belong to group A (as provided for in the Regulation on the Management of Investment and Construction) as well as the winners of consultants selecting biddings, each valued at 10 billion VND or more; biddings for the procurement of materials and equipment, each valued at 50 billion VND or more, based on the proposals of the Minister of Planning and Investment.

The remaining biddings shall be assigned to the Ministers, the Presidents of the People�s Committees of the provinces and cities directly under the Central Government and the Heads of the competent agencies for consideration and decision at the proposal of the project owner.

2. The agency competent to decide the investment in projects using State capital, which belong to group B (as provided for in the Regulation on the Management of Investment and Construction), shall employ his/her professional assisting apparatus and/may invite consultants when deciding the result of the selection of bidders for selecting bidding consultancy, with values ranging from 500 million to 10 billion VND; biddings for the procurement of materials and equipment or construction and installation with values ranging from 10 to 50 billion VND, based on the proposal of the project owner. Consultancy biddings worth 10 billion VND or more and biddings for the procurement of materials and equipment or construction and installation worth 50 billion VND or more must be submitted to the Prime Minister for approval before the ratification of the bidding results. The remaining bidding packages with values lower than the levels stipulated above shall be assigned to the immediate lower competent level for ratification.

3. Regarding projects of group C (as provided for in the Regulation on the Management of Investment and Construction), the agency competent to decide the investment and the Head of the authorized agency shall ratify the winners of all bidding packages of the project.

4. With regard to joint venture and business cooperation projects, the Managing Board of the related enterprise shall ratify the result of the selection of bidders, based on the agreement with the Ministry of Planning and Investment.

5. With regard to investment projects not using State capital and not guaranteed by the State Bank and the Ministry of Finance for their borrowed capitals, the project owner shall themselves decide and take responsibility for the selection of bidders.

Chapter VII

EXAMINATION, INSPECTION AND HANDLING OF VIOLATIONS

Article 44.- Examination and inspection of the organization of biddings.

The Ministries, ministerial-level agencies, agencies attached to the Government, People�s Committees of the provinces and cities directly under the Central Government shall have to direct the specialized agencies in closely monitoring and examining the organizing of biddings for investment projects; and conduct investigation of acts with signs of violation of the Regulation on Bidding.

Article 45.- Handling of violations.

Any act of violation of the Regulation on Bidding, such as disclosing the confidentiality of dossiers, documents and information; of complicity, collusion or bribery... in the process of bidding shall be considered act that causes economic losses and shall be dealt with as follows:

Where the bidders commit violations, they shall be excluded from the bidding and shall not be entitled to get back their securities. If the bidders conspire to press for a bidding price, they shall be dealt with in accordance with law.

Where the tenderer commits violations, the bidding results shall be dismissed and the agency competent to decide the investment shall direct the reorganization of the bidding. The tenderer shall have to compensate for the damage caused to the bidders. Members of the professional organizations assisting the bidding, if committing violations, shall be excluded from the list of the organizations� members and shall be dealt with under law, depending on the seriousness of their violations.

- Where the persons who are entitled or authorized to ratify the bidding results commit violations, they shall be dealt with under law, depending on the seriousness of their violations.

Chapter VIII

IMPLEMENTATION PROVISIONS

Article 46.- Organization of the implementation.

The Minister of Planning and Investment shall have to preside over the coordination with the Ministry of Construction, the Ministry of Trade and the other Ministries and branches concerned to provide detailed guidance for the implementation of this Regulation and consider proposals made by branches and localities in the process of implementation so as to propose to the Prime Minister the readjustment of, or supplement to the contents of the Regulation on Bidding, if necessary. They shall have to make annual reports on the results of the implementation of the Regulation on Bidding and submit them to the Prime Minister.

The Ministers, the Heads of the ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People�s Committees of the provinces and cities directly under the Central Government and the project owners shall have to implement this Regulation.

Article 47.- Enforcement.

This Regulation takes effect from the date of its signing. The earlier stipulations which are contrary to this Regulation are now annulled.-

On behalf of the Government

The Prime Minister

VO VAN KIET

Note:

(1) Appendices are not printed.